Don't Let John Yoo Talk You Into Domestic Drone Use by Police

By Conor Friedersdorf

He says private drone use is more worrisome. That's because he's never adequately understood the need to restrain the state.

Reuters

As a Bush Administration lawyer, John Yoo employed flawed legal reasoning to facilitate torture and a view of executive power that would make the U.S. Constitution worthless if it were widely adopted. Despite his history of caring more about checks and balances when a Democrat is in the White House, he's been mostly comfortable with the excesses of the Obama era. And a recent item he published at Ricochet is yet another example of why he can't be trusted on questions concerning the federal government and the importance of restraining it to protect liberty.

His remarks are about the rules that should govern domestic use of drones. Says Yoo, speaking of government operated drones:

I predict that private drones will prove a bigger invasion of privacy. I met an inventor a few months ago who showed me a drone that could be made for a few hundred dollars and controlled by an iPhone.The Constitution only limits what the state can do, not what private parties can do. And it is private parties who will be the principle users of domestic drones. I predict that these drones will be used mostly by suspicious spouses and parents, not to mention celebrity gawkers. So more important than worrying about whether the NYPD or DHS uses drones, are what rules our society will choose to govern and constrain the private use of drones. It may ultimately be difficult to control; as drone technology allows for smaller and cheaper drones, the government will have less and less ability to regulate them.

There is the illusion of reasonableness here. Private use of drones really may pose significant privacy concerns, just as the proliferation of cameras in cell phones or the prospect of Google Glasses might one day affect privacy rights even more than municipally owned surveillance cameras.

But my goodness. CIA drones are already being used in the extrajudicial killing of American citizens. Government spy drones have already been purchased by the thousands. The technology employed in military and CIA drones is far more advanced and intrusive than anything that jealous spouses will be able to access in the near future. And most important of all, Yoo has got it exactly wrong: the rules governing NYPD and DHS drone use are of vital importance, regardless of what's happening in the world of private drones, because coordinated government spying is more problematic than spying by parents or celebrity gawkers.

Yoo ought to understand why that is so. He's the sort of complacent lawyer that power-hungry leaders rely upon when they want to torture or spy without warrants or extrajudicially kill in secret. The monopoly on force that the state enjoys, the tremendous power wielded by its functionaries, the incentives to target political enemies, and the frequency with which abuses occur are all reasons why restraining official use of this technology ought to be an urgent priority. There's also the reality that, whatever the future brings, government use of drones is now much more common.

Yoo suggests a mindset wherein we ignore the clearest and most present threats that drones already pose and instead speculate about what private actors might do in the future. I don't know what rules we'll settle on when private drone technology spreads, but I'm reasonably sure that arming them will be prohibited.

If private parties use drones in objectionable ways, the law will quickly step into the breach, just as it's done to address tapping phone lines or hacking into private email accounts. Perhaps Yoo is right that new laws won't be able to preserve as much privacy as we now enjoy as technology changes. If so, by definition there isn't much to be done. What isn't inevitable is unrestrained government. And what government won't do, without pressure from citizens, is to restrain itself or check its own abuses of power. There will always be lawyers like Yoo ready to cede the power do anything all the way up to crushing the testicles of an innocent child. Better to preemptively deprive authorities the domestic use of drones as a tool, which will also deprive the drone industry funds that will only result in more powerful technology moving into private hands. The costs of domestic law enforcement using drones just outweighs the benefits.